Have things changed over the last couple of years?

The Church of England’s consistory courts are frequently called upon to assess the relative merits of proposed building works for repair or modification, in terms of their impact on the heritage and aesthetics of the building against its overall mission within the community. We have explored this on earlier occasions, in 2014 and 2017, and here we review Re SS Phillip and James [2018] Ecc Glo (neutral citation pending) and provide an update to these earlier comments.

Background

On 24 August 2018, the Church of St Phillip and St James, Cheltenham was granted faculty approval for a £2,090,000 reordering scheme (September 2016 costs). This included a number of uncontroversial items – raised floor level and underfloor heating, the glazing of the South transept chapel, the new crypt floor, improved lighting, the restoration of steps, a new ventilating door, tanking to a storage area and a new boiler – which, in the opinion of the Chancellor, June Rodgers, “might have seemed really fairly run of the mill and difficult (subject to any DAC concerns) for objectors to oppose” [7]. Nevertheless, the amenity societies, “the professional objectors”, did oppose some of these, as did local objectors who chose to be or were deemed to be informal objectors.

However, other components proved more controversial, i.e. the removal of all the pews from the nave and side aisles and the creation of glass pods, clad on the ground floor level and glass above, “providing not so much extra space, save for an upper glass level, but the additional use of space carved out of a nave area for offices, meeting rooms and the like” [7].

The Diocesan Chancellor’s reaction to these objections was expressed in a Daily Telegraph headline as “Middle classes have become obsessed with stained glass and church pews rather than religion“; however, what June Rodgers actually said was:

“[3]. …Artistic Heritage, on occasions, can appear to become [a] professional middle class substitute for religious observance or belief…”.

[The exact quotation was relegated to a figure caption]. The Team Rector, the Rev Nick Davies, also expressed frustration that the case had consumed the tenures of his four predecessors.

Nevertheless, the 22-page judgment gave a balanced view of the issues faced by Chancellors when seeking to assess the relative merits of the mission, aesthetics and heritage of parish churches. In Lessons from Pip and Jim’s, we reproduced the sections pertinent to the assessment of the relative merits of the mission, aesthetics and heritage of parish churches.

An impression of the proposed work may be gained from the architects’ description Cheltenham excited by church reordering proposals, and whilst some might view this as a case of MRDA, a useful insight to the work may be gained from the graphics on the church’s Facebook page, presumably also produced by the architects.

SS Phillip and James

Re-ordering of this Grade II listed church had been on the agenda of the PCC since at least 2001. “However, from 2012 their current Team Rector has led them to envisaging a reordered Church, which might provide new dynamic facilities in which to proclaim the Gospel” [1]. Some re-ordering has already taken place, under Faculty, in a side (Memorial) chapel in 2011. The Chancellor observed:

“[2]. Not only have the congregation spent much time and effort in coming up with their current, reworked scheme (for there have been alterations in the light of criticism), but time has been taken to consider the objections raised, principally by the Victorian Society, a statutory amenity body. I am well aware that delays for such consideration have been frustrating to the Petitioners, but it is a mark of the architectural importance of their church, both in the Diocese and nationally, that the Victorian Society, and others, have become involved…”

After reviewing its history [4], the church as it is now, an assessment of its architecture, and the reasons for its designation as Grade II* [5, 6], the Chancellor considered the development of the proposals (originally submitted in October 2016), and the objections raised [7 to 9].

The state of play vis-à-vis the positions of the relevant parties when the matter was considered by the DAC in July 2017 is described in paragraph 10; by this time, the plans for a west end atrium drum entrance had been “scuppered” by the Planning Authority. The DAC provided the Chancellor with a substantial paper, which itself followed three years of discussions and evolving parochial planning to reflect their reasons for their views on the whole scheme; this also took into consideration the views of their specialist advisory consultees, site visits and correspondence. The outcome of the three choices put to the DAC was interesting, but problematic to the Chancellor:

• Recommend approval : 3 in favour, 9 against
• Not recommend approval: 6 in favour, 6 against
• Not object: 8 in favour, 4 against

Prior to considering the legal issues, the Chancellor observed:

“[13]. … The reality here is that either the overall scheme goes ahead (with the technical details being discussed and approved by the DAC) or the whole scheme falls. There is now little room for further discussion. The Parties have reached an entrenched position”.

A number of “tests for change” were examined for the “liberal Catholic family friendly” churchmanship practised, which sought to “maintain ‘the Victorian ambience; in spite of later piece-meal changes, but to provide an interior fit for a modern congregation” [15]: these included:

• Will it assist the mission of the Church in Cheltenham?
• If the alterations do not take place, is there a downside?
• Are the proposals supported by the worshipping congregation?
• Can they afford it?
• As nothing lasts, liturgically, congregationally or architecturally, are all/any of these changes reversible?

Taking into account the test in Re St Alkmund, Duffield [2013] Fam 158 and the recent decision of the Arches Court in Re Bath Abbey [2018] EACC 1, approval was granted for the final scheme as set out in reordering proposal documents of October 2017. Significantly, Chancellor Rodgers noted that in Bath Abbey there was a stronger argument against the removal of pews than in the instant case, “yet the removal of those pews was sanctioned” by the Arches Court.

Each aspect of the overall re-ordering of St Phillip and St James was considered; however:

“in reality it is an ‘all or nothing’ application’. Tinkering would be the worst of all worlds. Either the Petition is approved as a whole (subject to DAC advice as to installation etc.) or its rejected. Very little could be achieved by a bit of re-ordering. The overall appearance of the church would be (partially) altered but the Parish would not have what they want.”

As to whether there were “exceptional circumstances” under which the potential public benefit of the proposed changes outweigh the level of harm – i.e. the “St Alkmund, Duffield test – the Chancellor determined that “the needs of the parish and its current congregation are such that that test is made out”; in particular,

• The ability of much of the scheme to be reversible weighs in its favour.
• Were this church to be an outstanding and singular example of Middleton’s work [who designed the church and many of the fixtures and fittings], the decision might have been otherwise. SS Phillip and James is a competent set piece, but there are other examples of his work.
• The fact of it being a good example of his work does not justify its continuation substantially unaltered if the needs and wishes of the worshipping congregation justify the change they want.
• There is just insufficient evidence … to refuse this petition on the St Alkmund test.

Comment

Since our post in 2017, the impact of major reordering schemes has been considered in number of other cases, notably Re Bath Abbey [2018] EACC 1, and also Re Holy Trinity Hull [2017] ECC Yor 1. The Telegraph article suggests that the Bath Abbey case “set a wider precedent for consistory courts to approve renovation plans so churches could host community events and homeless shelters”. However, the situation is more nuanced: legally the case did not set a precedent – church courts do not have a sophisticated doctrine of binding precedent and stare decisis – and the balancing exercise conducted by the respective Chancellors was based upon the same criteria, taking into account the material facts in each case. No new points of law were raised, and Re SS Philip and James relied upon the same guidance as that considered in earlier cases, i.e. test in Re St Alkmund, Duffield.

Returning to the question “have things changed over the last couple of years?”, despite the high-profile cases of Hull Minster and Bath Abbey, the underlying law remains the same. The Chancellor’s comments in Re SS Philip and James, above, indicate the fact-specific nature of the application of Re St Alkmund, Duffield in the judgment, which, if different, could have resulted in a negative outcome to the petition.

The importance of the facts of each case is further emphasized in the recently-reported Re All Saints Little Bealings [2018] ECC SEI 1 which also applied the Re St Alkmund, Duffield test; here a faculty was granted for a major reordering, despite the fact that the proposals would result in harm, and in the case of two specific aspects, harm with a high impact; not only was the harm judged as being justified clearly and convincingly in terms of the needs of and benefit to the church, but that the proposals offered the only realistic way in which this church can be saved from inevitable closure.

However, the importance of Re SS Philip and James lies in the clear, generally-applicable assessment of the issues raised by this case, summarized in our post Lessons from Pip and Jim’s and the bullet points listed above. Chancellor Rodgers also neatly summarized the range of potential actors involved in such developments, and some of their motives. As we were reminded in Becky Clark’s recent post, Shout Out Loud: Why I Welcome Disagreement on Caring for Churches, this is not a new dilemma for the church:

“To the incumbent the church is a workshop; to the antiquary it is a relic. To the parish it is a utility; to the outsider a luxury. How to unite these incompatibles?”

Thomas Hardy, Memories of Church Restoration (1906)